Some time ago I reported on the case of two friends who left a drunken friend at a tavern were charged with homicide because the drunken friend was killed by being struck by a car, when the drunken friend decided to walk on a highway at night.

This is the era of creative prosecution and an attempt to create civil liability in third persons.

In other words to pass off the responsibility of the drinker to other persons who were just friends or acquaintances, and impose care and custody duties, civil and criminal. As I reported in this forum:

So far, Massachusetts did not lean this way but the following case makes me believe that one could be the nice guy and end up as a murderer because you placed a person in his own vehicle, which later is involved and created by the drunk you assisted.

Here is a case in point:

As reported in a legal reporters note:

In July of 2000, New Jersey resident Kenneth Powell was awakened by a phone call from the police. They asked whether he'd come to the station to pick up his friend, whom they had just arrested for drunk driving. Powell agreed, and when he arrived at the police barracks, a trooper gave him directions for getting from there to the arrest site, where the drunk driver's car was parked. Powell followed the directions and dropped off his friend, to whom police had already returned his car keys, at his parked car. The drunk driver then got behind the wheel of his sports utility vehicle, proceeded to drink some more, and drove head-on into another car, killing himself and one of the other vehicle's occupants. Powell was subsequently charged with manslaughter and vehicular homicide in connection with the two deaths. Last Friday, the jury acquitted on the manslaughter count and deadlocked on the others. The judge has declared a mistrial.Describing the case to several people, I repeatedly encountered the same reaction. Powell surely exercised poor judgment, as did the police, but manslaughter? Was it really fair to charge Powell with any crime, let alone homicide, for what a drunk friend did to himself and another man?Theories of Prosecution and DefenseProsecutors justified the homicide charge by claiming that Powell exhibited a reckless disregard for human life when he dropped off his extremely drunk friend at a vehicle. Though Powell never intended for anyone to die, prosecutors argued, he acted in a manner that created a substantial risk of death, one that tragically came to pass.As defense attorneys were quick to point out, however, it was the police who put the car keys in the hands of a man registering a .21 on a breath test for alcohol. It was also the police who instructed Powell on how to get from the station to the car, a route that implicitly assumed Powell would be going there directly with his friend. And finally, it was the police who never warned Powell not to allow his friend to drive.Creative ProsecutionIn cases such as Kenneth Powell's, prosecutors find creative charges to bring against people who have done something wrong but have not obviously violated any criminal law. If the drunk driver had survived his collision, he would have been the logical person to charge with homicide. He chose to drink and get behind the wheel of a car, even after being arrested for drunk driving. At the time of death, in fact, his blood-alcohol content was a whopping .26. Were the intoxicated driver alive, it is unlikely that anyone would have considered charging Kenneth Powell in connection with the collision. With the true culprit dead, however, the only apparent way to hold someone criminally responsible was to prosecute Powell.In another example of creative prosecution, a South Carolina public hospital in 1989 began screening maternity patients for cocaine and reporting positive test results to the police. Some of the women were subsequently arrested for delivering drugs to a minor (i.e., the fetus). As in Powell's case, something bad had happened--a fetus was exposed to a dangerous substance--and someone was going to pay.Is it irresponsible for a pregnant woman to take cocaine? Yes, although less so than it would have been for her to drink large quantities of alcohol, an act that few would describe as "serving drinks to a minor." Though perhaps wrong and even worthy of some condemnation, her act of ingesting intoxicants is quite distinct from giving a substance to another person, and therefore does not fit naturally into the available legislative categories.The Legislative Alternative--Letting the People DecideIn both sets of cases, prosecutors could have pressed for new legislation that would cover the unusual situations in the future--criminally punishing pregnant women who ingest potentially harmful substances, or holding a drunk driver's friends criminally responsible for injuries and deaths they could have stopped him from causing. Instead, the district attorney's office bypassed the democratic process by expanding the scope of existing criminal laws. Were such statutes presented to the people directly, voters might find them draconian, unfair, and perhaps even counterproductive. In a telling development, for example, New Jersey has, since the tragic events of July 2000, passed a law requiring police to impound a drunk driver's vehicle for twelve hours after a DWI arrest. By contrast, it did not enact any legislation extending the liability of a drunk driver's friends.Not Just a Bad IdeaAn often-neglected principle for interpreting criminal laws is the rule of lenity. When a criminal statute lends itself to both broad and narrow constructions, this rule compels a court applying the law to select the narrow one. The reason is simple: fair notice. To confine a person for a criminal act, the law must have clearly notified him ahead of time that his behavior would qualify as a particular crime, subject to a particular range of penalties. Without such notice, a criminal penalty essentially becomes an ex post facto law, specifically banned by the Constitution.Kenneth Powell's prosecutors, and the officers who arrested cocaine-using maternity patients in South Carolina, would say they did not create a new law but only relied on existing statutes. But one could always so characterize a novel prosecution. The question is whether an average law-abiding citizen would have anticipated these applications of the law. For Kenneth Powell, the answer is almost certainly no. In fact, the nonlawyers with whom I have discussed the case all became instantly confused when I said that Powell, the man who had picked up and dropped off his drunk friend, was charged with homicide. The next question I received was "Why did the police return the guy's car keys?" or "Aren't the police just as much to blame?"The answer may well be yes, although it would seem equally unfair to charge the police with manslaughter. The truly guilty party cannot be prosecuted, because he is dead.Compounding InjusticeDoes that mean that nothing out of the ordinary may be prosecuted, because it does not fit our stereotype of the crime in question? Is there no legitimate room for creativity in the district attorney's office? The issue is a tricky one, and hard cases are inevitable. Prosecution will sometimes "feel right" to many but will nonetheless be at the cutting edge of the law. We might expect juries to nullify in many such cases, as they did, for example, every time Jack Kevorkian was prosecuted for murder (but not when he was prosecuted for physician-assisted suicide). Perhaps the jury's deadlock in Powell's case reflects similar concerns.Notwithstanding the law, it can be satisfying to charge a man with homicide when someone who might have lived is so cruelly taken from his family and friends. A criminal prosecution can restore order and give those who grieve some semblance of closure. But we must be careful that in our zeal to do justice for one innocent victim, we do not create another. What Do You Think? Message Boards

Sherry F. Colb is a professor at Rutgers

This would have been tough to accomplish in Massachusetts since the released drunken driver would have to have a licensed driver, who would have been checked for valid license and agreed to do the driving; on this note I think that this type of procedure should have been followed in that state.

If the state/commonwealth did not insure proper release, and or enforce the same, why would a third party be liable?

Maybe, in a full trial, this defendant deserved to be tried if the facts indicated that the defendant aided and abetted the intoxicated driver for something other than turning over the keys to the rightful owner.

Alan,This type of charging ought to send chills up the spines of martial arts instructors. The New Jersey scenario is not much different than this hypothetical: A sensei teaches students effective self defense techniques, including potentially fatal blows and chokes. A student wrongfully applies a choke to a victim and kills him. The Sensei put the weapon into the arsenal of the killer. Should he be prosecuted? What if the student had a criminal record and the teacher knew of the criminal record? What if the teacher observed that the student was overly aggressive and injured others in class? What if the student told the teacher he wanted to learn techniques that could kill a man? Should Sensei be prosecuted? Could he be prosecuted? It sounds to me as if he could be prosecuted in the same New Jersey county that prosecuted Mr. Powell.

The trend toward absolving individuals of their misdeeds by blaming others, or spreading criminal culpability to non-actors is not simply a repulsive trend that may be shrugged off. It is a serious diminishing of important individual rights that have been cherished in this country since its inception.

Yes Norm, this should send shivers up and down the spines of instructors. Van Canna has been telling instructors to check their liability coverage for years, to make sure they will have help from their insurance should such an unfortunate situation arise.

I'm sure having unqualified officials in the rings would also rate right up there as a rather poor decision.

------------------GEM

This is why I strongly feel that the IUKF referee rules, testing and certification is a major step in the right direction in insuring safe, reasonable and careful conduct on the part of sponsors, participants and the organizations and individuals of having both documented and actual proof of cutting edge safety rules, equipment and procedures which insure.

I have seen in some "open" tournaments, the allowing of sparring with open fingers with gloves better suited as knuckle bandaids, ill fitting or useless foot pads, and head gear ill fitting, unprotective and even useless.

Great work on the part of Jay S on his certifcation work and referee test.

I do not wish to demean the other useful and skilful advise in setting forth the program of the many others.

The flood of IUKF email on this subject by the many talented members was testimony to this.

The next step I would love to see in the liability area of safety would be having on hand even minimum first aid kits in dojo and events and in large events, always at least an EMT.

This would warm the heart of this old lawyer.

But that is another matter for another thread.

I know that GEM preaches saftey practices in class at the Shubukan and I sincerely hope that the Uechi/Shoehei and all the community begins to move in this direction, especially after reading the case cited and Norm Abrahmson's warning.

Tournaments are very good targets for "hungry" ambulance chasers. The tournament organizers aren't the only one's that can be sued. Sharp eyed spectators noticed at our last tournament a parent signaling his son (who was losing the match) to try and knock out his opponent by hitting him in the head. This was a common practice in the 60s and 70s. Of course the kid couldn't hit his opponent, even though he was punching and kicking full contact. However, lets say he did score that knockout and hurt his opponent. That kid's parent, I'm sure, could be successfully sued.

The biggest problem, other than stupid coaches and parents encouraging their students/children to lose by disqualification rather than by the rules, is the liability teachers/promoters are under, when they allow competitors to spar without "state of the art" equipment.

I'm sure having unqualified officials in the rings would also rate right up there as a rather poor decision.

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